Following Senator Schumer’s lead, some liberal commentators, the latest being Jonathan Chait, are saying that Republicans have taken the senator’s 2007 remarks on judicial confirmations out of context to justify their own commitment to prevent Obama from getting another nominee on the Supreme Court.
Here, again, is the relevant passage from Schumer’s speech:
We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts; or Justice Ginsburg by another Alito.Given the track record of this President and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances (emphasis in original).
And here’s Chait’s gloss:
Schumer’s clear point was that Bush’s previous two nominees had misleadingly presented themselves to the Senate as moderates who would respect precedent, and then gone on to demonstrate judicial activist tendencies. Schumer’s proposed solution was not to stop any Bush nominee, but to require evidence of their moderation in their judicial record, not merely in promises they would make. One could believe Schumer was demanding too much deference for the Senate. But he was not arguing that the Senate should refuse to consider any nomination at all.
About this line of argument, a few points:
1) Schumer’s insistence that John Roberts had turned out to be intolerably right-wing was tantamount to saying that practically speaking, no Republican nominee was going to get confirmed. That’s especially true when the words “except in extraordinary circumstances” are thrown in. It also meant that he was willing to accept an eight-member Supreme Court under most foreseeable circumstances, and for a longer period than Republicans are now promising.
2) The same argument about dissembling nominees could be made about Sonia Sotomayor and Elena Kagan. (Remember when the latter said “there is no federal constitutional right to same-sex marriage”?)
3) Chait is putting an awful lot of weight on the tiny amount of hypothetical openness to confirmation that Schumer granted. If Republicans were to add “except in extraordinary circumstances” to all their statements about not letting an Obama nominee get confirmed, would Chait really be satisfied that they were being reasonable, respecting the old norms of American politics, etc? That qualification is already implicit in what the Republicans are saying. I’m sure Republicans would in fact confirm Paul Clement if Obama nominated him. That would certainly be an extraordinary circumstance.
P.S. Jonathan Adler points out that some old and now inconvenient words of Joe Biden are being explained away even less convincingly.
Update: In an update to his post, Chait faults me for leaving out the paragraph following Schumer’s “extraordinary circumstances” remark. “They must prove by actions—not words—that they are in the mainstream, rather than the Senate proving that they are not.” But I don’t see how this comment affects the thrust of my argument, which Chait isn’t addressing: Yes, Schumer held out the theoretical possibility that he would support confirmation of a George W. Bush nominee, but he practically closed the door.
To recap the speech: Schumer said that John Roberts and Samuel Alito had turned out to be unacceptably right wing, complained that hearings had not proven useful in flushing out how unacceptably right-wing they were, said (in a sentence that Chait does not quote) that the presumption of confirmation should be reversed, and said that confirmation should happen only “in extraordinary circumstances.” Schumer’s comment about letting nominees prove that they are in a Schumer-defined mainstream should be read in light of those remarks. (Incidentally, what does it even mean to say that a nominee would have to prove his acceptability to Schumer ”by actions” in a confirmation hearing?) He was saying: The nominee has to prove to me that he is acceptable, my default is that he isn’t, and it would be extraordinary if he were. All of which seems reasonably read to mean: I’m going to do what I can to stop any Bush nominee, but I’ll pretend to have a little bit of openness to one. That’s not a position any more flexible and accommodating than the Republicans’ current one. It’s just less honest.
And Schumer’s stance also meant, to repeat myself again, that he was not treating an extended vacancy on the Supreme Court–a vacancy longer than the one Republicans are contemplating–as some kind of constitutional crisis.